From the initial request to the final surrender: know the key stages of the extradition process and how to deal with them.

The extradition is a legal process by which a State surrenders a person to another State for the purpose of being judged or so that serve a sentence. It is a complex procedure, with multiple stages, specific legal frameworks and the intervention of governmental and judicial authorities from both countries. Below, we explain the key stages of the extradition process in Spain and what happens in each one, as well as the particularities when there is no treaty extradition agreement with the requesting country. At the end, we will offer practical advice for family members who need to act quickly when a loved one is detained for extradition.

Stages of the extradition process in Spain

Initial Application and Preliminary Examination

Every extradition process begins with an formal request from one country to another. A State (the country requester) sends through diplomatic channels a request for another State (the country of origin) to required(in this case Spain) to hand over a wanted person. The request should include the essential data of the individual (identity, nationality, address), a summary of the crimes of the charges against it and the legal basis of the request (e.g., an arrest warrant issued by a judge or a conviction if you are wanted to serve a sentence).

In Spain, upon receipt of an extradition request, the Ministry of Justice performs an initial examination. It has eight days to analyze the petition and submit a report to the Government on the appropriateness of continuing with the judicial process. Although this is a preliminary phase, it is crucial because it sets the tone for the legal battle that will follow. At this stage, the defense of the defendant (the person whose extradition is sought) may even file an initial brief alleging reasons why the extradition should not succeed, thus laying the groundwork for its opposition from the outset.

2. Governmental decision and opening of the judicial process

Following the preliminary examination, the Spanish Government must decide, within a maximum period of 15 daysIf it gives the green light to the requested extradition. If it does, the case is referred to the National Court (specifically, to the competent Central Court of Instruction) so that the judicial phase of the proceedings may begin.

If the claimed person is not yet detained in Spain, at this point it is customary to issue a arrest warrant as a matter of urgency. The objective is to ensure that the individual remains at the disposal of the Spanish justice system while the extradition is being processed. In fact, if there is a international arrest warrant (such as an Interpol red notice), the security forces usually arrest the requested person as soon as his or her presence on Spanish territory is confirmed. Once arrested, he/she must be brought before the judge of the Audiencia Nacional usually in less than 24 hours.

3. Hearing at the National Court and position of the Respondent

Once the judicial phase has been initiated, a see (hearing) before the Audiencia Nacional, which is the court in charge of these cases in Spain. In this session, the requested person may state whether or not voluntarily consents extradition or whether, on the contrary, opposes to it.

The Public Prosecutor's Office (represented by a prosecutor of the Audiencia Nacional) participates actively to ensure that the proceedings are lawful and that due process is respected. If the defendant opposes extradition (which is often the case), the judge of the Audiencia Nacional may impose the following measures precautionary measures while the merits of the case are being decided, in order to minimize the risk of absconding. These measures may range from pre-trial detention to less burdensome alternatives such as the house arrest or the release on bail with certain conditions (e.g., withdrawal of passport, prohibition to leave Spain and regular court appearances).

During this intermediate phase, the judge has the power to request additional information to the requesting State if it considers the documentation submitted to be incomplete or deficient. In this way, it ensures that all applicable legal and treaty requirements are covered before moving towards a final decision.

4. Judicial decision and possible appeals

Once the necessary proceedings have been carried out and all the relevant documentation has been received, the case will be heard by the Criminal Chamber of the Audiencia Nacional. This collegiate tribunal will study the case in depth. Both the defendant's defense and the prosecutor present their written pleadings, and the Chamber then convenes a final view where both parties can present their arguments orally.

At the final hearing before the Criminal Chamber, the defendant has the opportunity to address the court, usually through his or her attorney. It is important to note, however, that the debate at this stage is limited to legal issuesThe following is analyzed to determine whether the requirements of the extradition treaty (if any) and the Spanish legislation, without judging the background of the case (i.e., without determining whether the defendant is guilty or innocent of the crime with which he or she is charged; this is the responsibility of the requesting country). In Spain, unlike other countries, the National Court will not evaluate evidence of guilt or innocence, it will only verify that the extradition request respects the applicable norms and rights.

After this hearing, the Criminal Chamber has a short period of time (by law), three days) to dictate a self-motivated The resolution shall state the legal reasons for granting or denying the surrender of the person sought. This resolution shall state the legal reasons for granting or denying the surrender of the requested person.

• If the Audiencia Nacional denies extradition on legal grounds (e.g., because the act is not a crime in Spain, because it is considered a risk to the rights of the requested person, or any other legal reason), the procedure ends The person would be released and Spain will not surrender him/her to the requesting country. The person would be released and Spain will not hand him/her over to the requesting country.
• If, on the other hand, the Audiencia Nacional issues an order favorable to extraditionis not yet the end: this decision can be made by Respondent. Both the defense and the Prosecutor's Office may present appeal of appeal against the order before the Plenary of the Criminal Chamber (a higher hierarchical formation within the National Court itself). The Plenary will review the case and issue a final decision in court.

5. Final Government decision and delivery

When the judicial process has concluded (either because there was no appeal or because the appeal has already been resolved confirming that the extradition is admissible), the matter returns to the political sphere. In Spain, even after the judicial approval, the final decision whether or not to deliver the person is up to the Government. This means that, although the Audiencia Nacional has declared the extradition to be admissible, the Spanish Government has the authority to to refuse it on the grounds of expediency or general interest. For example, delivery could be denied on the grounds of national interestby reciprocity (if the requesting country never surrenders citizens that Spain claims, Spain could refuse as well), by humanitarian purposes or for assessing that extradition could have unintended political consequences.

In practice, it is not very common for the Government to contradict a favorable court decision, but such a possibility exists and is provided for in the law. If the Government rejects extradition, the person is released (unless he/she has other pending cases) and the surrender to the foreign country is not effective.

If the Government approves extradition (i.e., agrees to surrender after judicial approval), then the Ministry of Justice communicates it to the Ministry of Foreign AffairsThe Spanish authorities formally notify the requesting State to coordinate the details of the surrender. From there, the Spanish authorities and the authorities of the requesting country agree on the date, place and conditions for extradition (usually, the detainee is transferred under police custody to the point of departure, such as an airport, where he or she is handed over to escorts from the requesting country).

6. Constitutional guarantees and bail

Throughout the extradition process, the requested person has a series of rights and guarantees that Spanish legislation and international conventions recognize:

• A complaint may be filed at any time writ of amparo before the Constitutional Court if it is considered that any action taken during the process has violated their rights. fundamental rights (e.g., right to defense, to effective judicial protection, to a fair trial, etc.). This extraordinary remedy is infrequent and is only successful in cases of very serious violations, but it acts as an ultimate safeguard against possible abuses or irreparable errors.
• The possibility of obtaining provisional release (bail or other conditions) during the extradition process exists, but it is at the discretion of the judges. The Audiencia Nacional will assess factors such as links the respondent's relationship with Spain (family, work, domicile), the gravity of the offenses charged and the risk of leakage. Depending on these circumstances, the judge may decide to keep the detainee in pre-trial detention until the final resolution, or grant release under certain conditions. These conditions usually include: payment of a bail, regular presentations before the court, ban on leaving of the Spanish territory and passport withdrawal to prevent the defendant from fleeing.
• Other important procedural safeguards are the right to be provided with legal assistance (a defense attorney) from the moment of detention, the right to interpreter if the respondent does not understand the Spanish language, and the right to be clearly informed of the facts and of the reason for his arrest in a language he/she understands. Likewise, if the respondent is a foreigner, he/she should be allowed to communicate with his/her consulate or embassy (this is covered by the Vienna Convention on Consular Relations).

In summary, the extradition process in Spain is designed to balance international cooperation in the fight against crime with international cooperation in the fight against crime. protection of individual rights of the claimed person. Each stage, from the initial request to the final surrender, involves careful legal procedures to ensure fairness and legality.

Extradition without treaty: legal framework and complications

What happens if there is no extradition treaty with the country requesting the surrender? In such cases, the procedure becomes more uncertain and depends entirely on the domestic legislation and the principle of reciprocity. Spain, like many other countries, prefers to support extraditions when there is a bilateral treaty or belongs to a multilateral agreement (e.g., European or Inter-American conventions) that establish clear rules. However, if there is no agreement in place, Spain can still comply with the request. by virtue of its own law (Law 4/1985 on Passive Extradition) provided that there is reciprocity and the legal conditions are met.

In the absence of a treaty, the Spanish Government has a margin of much greater discretion to grant or deny extradition, especially in the final phase. This means that diplomatic or political reasons may weigh more in the decision. Even so, the process must follow a minimum legal basis and respect the guarantees of the defendant that our legal system establishes.

Countries without extradition treaties with Spain: Although Spain has signed extradition treaties with most nations, there are still some countries that have not yet signed extradition treaties. numerous countries with which no an extradition agreement is in place. Some examples are:

• Europe: Belarus, Vatican City and Kosovo do not have extradition treaties with Spain. (With Russia, Spain came to apply the European Convention on Extradition, but since 2022 extraditions to Russia have been suspended due to the conflict in Ukraine).
• America: Several Caribbean and Central American countries do not have a treaty with Spain. For example: Antigua and Barbuda, Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Haiti, Jamaica, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Suriname, Trinidad and Tobago, among others.
• Africa: The list of African countries without an extradition agreement with Spain is extensive. It includes, among others, Angola, Cameroon, Republic of Congo and Democratic Republic of Congo, Ivory Coast, Ethiopia, Gabon, Gambia, Ghana, Kenya, Nigeria, Senegal, Tanzania, Uganda, Zambia and Zimbabwe.
• Asia: There are also no specific treaties with Asian countries such as Afghanistan, Saudi Arabia (there is only a police cooperation agreement), Bahrain, Bangladesh, North Korea, Philippines, Indonesia, Iran, Japan, Jordan, Kuwait, Nepal, Pakistan, Singapore, Syria, Sri Lanka, Thailand, Taiwan, Uzbekistan or Yemen, to mention a few.
• Oceania: In Oceania, there are no extradition agreements between Spain and States such as Fiji, Micronesia, Papua New Guinea, Samoa, Tonga or Vanuatu, among others.

Legal framework applicable in the absence of a treaty: In the absence of a bilateral or multilateral agreement, the legal framework governing extradition is primarily internal. In Spain, the legal sources to be considered are:

- The Spanish Constitutionwhich in Article 13.3 establishes that "extradition shall only be granted in compliance with a treaty or the law, in accordance with the principle of reciprocity.". If there is no treaty, there must be a law The extradition is not covered by the extradition treaty and, in any case, reciprocity is required (i.e., that Spain would receive equivalent treatment from the other State if the roles were reversed).

- The Passive Extradition Law (LEP)The LEP sets forth the principles and conditions for granting extradition in the absence of a treaty. The LEP sets forth the principles and conditions that must be met in order to grant extradition in the absence of a treaty. Some of the guiding principles are the most important ones:

• Reciprocity: Spain will only grant extradition if it can expect similar treatment from the requesting country. This principle seeks a balance in international cooperation: both countries undertake to assist each other in extradition matters under similar conditions.
• Specialty: If a person is extradited, he/she may only be judged o punished in the requesting State for those specific acts for which Spain granted the extradition. The person may not be prosecuted for different offenses committed prior to the surrender, unless Spain expressly authorizes it or the person consents to it.
• Double jeopardy: The crime charged must exist in the laws of both countries. This means that Spain will only extradite for facts that also be a crime in Spain. If the act is not punishable in Spain, this basic requirement is not met and extradition will be denied.
• Non-extradition of Spanish nationals: Spanish law prohibits the delivery to Spanish citizens to a foreign country, unless an international treaty in force provides otherwise. In the absence of a treaty, Spain does not extradite its nationals (Instead, in some cases, Spain could assume the prosecution of the citizen for the acts committed abroad, so that he/she would answer before the Spanish justice system).
• Non bis in idem: No one can be tried twice for the same thing. If the person sought has already been tried (or is being tried) in Spain for the same facts in question, the extradition not applicable. This principle avoids duplication and protects the right not to suffer double criminal prosecution.
• Political or military causes: Spain will not grant extradition in the following cases political crimes o purely military offenses. The definition of "political crime" can be complex, but acts of terrorism, genocide or other serious crimes under international law are generally excluded from this category.
• Human rights and death penalty: It is an indispensable condition that the requesting country must offer sufficient guarantees respect for fundamental rights. In particular, Spain shall require the guarantee that the requested person will not be executed (Spain does not extradite if there is a risk of death penaltyThe latter, since it is abolished here, is neither subject to torture or inhuman or degrading treatment.
• Asylum seekers and refugees: If the claimed person has the status of a "legal permanent resident", he/she must be political asylum or refugee in Spain, extradition will be denied. Spain respects the principle of no refund of those who have obtained international protection in its territory.

In addition to these causes mandatory In the event of a refusal, the LEP provides that the Spanish Government, in a manner optionalThe State may refuse extradition in other cases, for example, on the following grounds humanitarian (very advanced age of the respondent, serious health condition), by national interest or disproportionality, or if the respondent is underage at the time of application.

Procedural guarantees even if there is no treaty: Even in the absence of an extradition treaty, the procedure in Spain offers the requested party the same rights as in Spain. guarantees and rights than in any extradition:

• The case follows a double checkingfirst governmental and then judicial reinforcedbefore the Audiencia Nacional. This means that, after the initial political phase, there is a public judicial hearing where defense arguments can be presented. The Audiencia Nacional will examine the application with special rigor, and may refuse extradition if it detects formal defects, lack of legal basis, risk of political persecution or any other irregularity that violates rights.
• The respondent is entitled to a effective legal defense from the very first moment. You will be assisted by a lawyer during your provisional detention, at the hearings before the National Court and throughout the proceedings, being able to present evidence and allegations in your favor.
• The presumption of innocenceAlthough extradition does not judge guilt, the person is considered innocent as long as there is no final conviction. In case of doubt about the defendant's participation in the facts or about the sufficiency of the evidence presented by the requesting country, such doubt will benefit the defendant during the extradition process.
• If the respondent does not understand the language, he or she shall be entitled to a interpreter and to receive translations of the essential documentation. You will also be informed in detail of the facts attributed to you and the procedure to be followed, in a language you can understand.
• Extradition must respect the principle of equality and non-discriminationThe requested person may not be treated differently on the basis of nationality, race, religion, political opinions or other personal circumstances. Everyone is equal before the law in an extradition proceeding, with or without a treaty.

Main complications without extradition treaty: In the absence of an agreed framework between States, several additional challenges may arise in the extradition process:

1. Increased uncertainty and political discretion: Without a treaty delimiting obligations, the outcome of the extradition request is less predictable. The Spanish Government has more freedom to decide on the basis of considerations political or diplomaticwhich increases uncertainty. In these cases, the national interest and foreign policy of the moment may significantly influence the final decision.
2. Possible refusal without legal explanation: In the absence of a binding international commitment, Spain is within its rights to refuse extradition simply for convenience, without the need to provide a detailed legal justification. In other words, in the absence of a treaty, the sovereignty prevails: the surrender is a voluntary act and Spain may refuse to cooperate if it deems it necessary, invoking reasons of opportunity or reciprocity without incurring international responsibility.
3. Stricter examination of the requesting country's guarantees: In the absence of treaty confidence, Spanish authorities (both judicial and governmental) tend to be even more cautious. They will carefully verify that the requesting country offers solid guarantees that it will respect the rights of the extradited person. If there are indications of risk of tortureof trials without guarantees or double jeopardy, Spain is much more likely to refuse extradition. In the presence of a treaty these guarantees are already largely assumed, but without a treaty they are examined case by case with a magnifying glass.
4. Procedural delays and delays: The lack of a predefined path often translates into longer processes. There is more diplomatic back and forth (because ad hoc conditions may have to be negotiated), more time spent checking each legal requirement and possibly delays in obtaining additional documentation. All this generates legal insecurity Both for the requesting country and for the requested person, who may spend months (or even years in complex cases) awaiting a final decision.
5. Evidentiary and administrative difficulties: It is possible that the documentation and evidence submitted by the requesting state do not adjust easily to the requirements of Spanish law. For example, certain offenses may not have an exact equivalent in the Spanish Criminal Code, complicating the verification of the dual criminality. Or the application may not include all the documents that the National Court needs (such as the text of the applicable laws, formal guarantees, etc.), forcing it to ask for clarifications and causing delays. In addition, language barriers or differences in legal systems may hinder the correct understanding of the case.
6. Risk of diplomatic tensions: Every decision in a non-treaty extradition case can be viewed through a political lens. If Spain grants or denies the surrender of a requested person, the requesting country could take it as a friendly gesture or, on the contrary, as a diplomatic offense. This is especially sensitive if the requested person is a citizen of the requesting State or if the case has political connotations. Extraditions refused on human rights or political considerations could generate friction in international relations between Spain and the requesting country.
7. Filing of asylum applications: On more than one occasion, the respondent chooses to request asylum or international protection in Spain claiming to be a victim of political, ethnic, religious or other types of persecution in their country of origin. This asylum request automatically suspends the extradition process while the Spanish authorities evaluate the request for protection. The extradition file will be paralyzed until the Asylum and Refugee Office (OAR) and, if applicable, the Spanish courts will decide whether or not to grant asylum. This additional procedure can further lengthen the process and adds complexity, as it involves analyzing the human rights situation in the requesting country and the profile of the person sought as a possible refugee.

In short, processing an extradition without an extradition international treaty The current legal framework requires a thorough legal analysis and a procedural strategy adapted to the particular circumstances. The Passive Extradition Law and constitutional principles provide a frame of reference and guarantees, but the absence of a prior agreement turns the procedure into a terrain where the Law and the diplomacyThe sensitivity of the case is increased. In these scenarios, it is essential to have a expert legal defensecapable of navigating both technical legal aspects and policy considerations to effectively protect the interests of the respondent.

What to do if a family member is detained for extradition?

The detention of a loved one in Spain due to an international extradition request is a distressing situation and one that often occurs from time to time. surprising way (e.g., at an airport during a trip). If you find yourself in this situation as a family member or close relative, it is important to act quickly and with knowledge. Here are some key steps to follow to face this critical moment:

• Immediately contact a lawyer specialized in extraditions: The first and most important thing is to obtain professional legal assistance. A lawyer with experience in international extradition will be able to advise from the first minute, assist the detainee at the National Court and prepare an effective defense strategy. Given the complexity of the process, it is not advisable to attempt to face it without expert representation.
• Do not speak to police or consular officials without a lawyer present. Anything your family member says could be used against him or her in the country prosecuting him or her. Call a criminal lawyer with experience in extradition and human rights before signing or declaring anything."
• Gather information about the case: Try to obtain as much information as possible about the arrest. It is essential to know which country is requesting extradition y for what crimes. It is also useful to know if there is any extradition treaty with that country, as this may influence the procedure. This information will be very useful to the lawyer in planning the defense.
• Ensure communication with the detainee: From the beginning, the detainee has the right to communicate with a family member and, if the detainee is a foreigner, to inform his/her consulate. Maintain a channel of communication through lawyers to know the detainee's situation, state of mind and needs (e.g., provision of clothing, medication or documents). Your emotional support is also important: knowing that his family is mobilizing to help him will give him peace of mind.
• Explore additional legal options (such as asylum): Depending on the circumstances, the attorney may advise you to file a asylum application in Spain if there are indications of political, ethnic or other types of persecution in the requesting country. By requesting asylum, the extradition process is temporarily paralyzed until the request for international protection is resolved. This is not always appropriate, but in certain cases it can be a way to gain time and ensure that the person is protected in Spain instead of being sent to the country where he or she fears for his or her life or integrity.
• Entrust the defense to an expert and reliable team: Extraditions are rare and extremely technical processes, so it is essential to have lawyers who are well versed in this area. Look for firms with proven experience in extradition cases. A specialized legal team will know how to appeal adverse decisions with agility, how to argue applicable legal exceptions in court and how to negotiate at the governmental stage if necessary. At such a stressful time, relying on professionals who are used to these legal battles provides peace of mind in knowing that all avenues of defense are being exhausted.

Venfort Lawyers has criminal lawyers specialized in extradition in MadridThe company is prepared to intervene immediately in cases of detention at airports and airports. anywhere in Spain. Our firm, with a presence in Spain and Latin America, has a wide experience in the comprehensive management of extradition proceedings, including those without a prior treaty, and in the protection of the human rights of the requested party. If you or your family are facing an extradition situation, do not hesitate to contact usAt Venfort Abogados we will evaluate your case urgently and offer you the most appropriate legal assistance to achieve the best possible defense. Your peace of mind and the freedom of your loved one are our top priority.